VORBACH ENTERPRISES PTY LTD & ANOR v CITY OF CHARLES STURT [2010] SAERDC 69 (20 December 2010)

Last Updated: 20 December 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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VORBACH ENTERPRISES PTY LTD & ANOR v CITY OF CHARLES STURT

[2010] SAERDC 69

Judgment of His Honour Judge Costello

20 December 2010

ENVIRONMENT AND PLANNING - BUILDING CONTROL

Appellants served with a Notice under Section 71 of the Development Act requiring works to ensure fire safety of their building is adequate - appellants argued that the requirement for adequate fire safety in Section 71 is satisfied if building meets standards set out in the Building Code of Australia and that the Building Fire Safety Committee's requirement for an alarm system, not being a requirement in the Code, was therefore unreasonable - determined that building as currently being used does not meet the requirements of the Code - alarm system necessary to ensure adequate fire safety - appeal dismissed.

Development Act 1993 s 71; Heritage Places Act 1993; Building Code of Australia 2010 Vol 1; Environment Resources and Development Court Act s 33, referred to.

R v SAPC ex p City of Unley (1986) 44 SASR 100, 105, considered.

VORBACH ENTERPRISES PTY LTD & ANOR v CITY OF CHARLES STURT
[2010] SAERDC 69

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal, pursuant to s 71 of the Development Act 1993 (“the Act”), against a requirement, in a Notice from the Respondent’s Building Fire Safety Committee (“the Committee”), directing the Appellants, amongst other things, to install an automatic fire detection and alarm system (“the system”) in accordance with the Building Code of Australia (“the Code”).
2. In its appeal, lodged in August 2009, the Appellants gave, as their reasons for appeal, the following:-
   1. “the applicant (sic)” may not be able to complete the measures required in the given time limit by the Committee. Upon obtaining quotes for such work to be done, we have found that we may not be able to have all the work completed within the two months.
   2. the premises in question may be subject to re-zoning by the Council given the nature of the work conducted in the premises, and the general use of the premises.”
      
3. On the hearing of the appeal, counsel for the Appellants, Mr Manos, articulated the Appellants’ reasons for appeal in a different way, namely:-

(і) the Committee’s power, in s 71, is limited to requirements which will ensure that the fire safety of the building is adequate;

(ii) the question, of what is adequate, is to be determined by reference to the Code.

(iіі) the Appellants’ building can meet the requirements of the Code without the need to install the system.

(іv) in these circumstances, the Committee’s requirement, for the Appellants to install such a system, was unreasonable.

4. The Respondent did not oppose the appeal proceeding on the basis which I have outlined, wishing, as its counsel, Mr McElhinney put it, to have the matter “fixed”, which I took to be a short-hand reference, to a desire to resolve an important issue of fire safety sooner rather than later.

The Act

5. As I have said, the Committee issued its Notice, pursuant to s 71 of the Act, which relevantly reads as follows:-

“s 71 Fire safety –
(1) An authorised officer who holds prescribed qualifications or a member of an appropriate authority may, at any reasonable time, enter and inspect any building for the purpose of determining whether the fire safety of a building is adequate.
(1a) An authorised officer who holds prescribed qualifications must conduct an inspection of a building under subsection (1) at the request of an appropriate authority or a fire authority.
(2) If an appropriate authority is satisfied that the fire safety of a building is not adequate, the appropriate authority may cause a notice to be served on the owner of the building.
(3) A notice under subsection (2) may –

1. require the owner to report the appropriate authority on the work or other measures necessary to ensure that the fire safety of the building is adequate or;

b) in the case of an emergency –
(і) require the owner to carry out a programme of work, or to take any other measure, to overcome any fire hazard; or
(іі) ...
(ііі) ...
(іv) ...
(4) A report under subsection (3)(a) must be provided to the appropriate authority within two months, or within such longer period as the appropriate may allow.
Penalty: Division 7 fine.
(5) ...
(6) An appropriate authority may, after receiving a report under subsection (3) (or, in
the event of a failure to provide a report in accordance with this section), by notice given to the owner of the building –

1. require the owner to seek an appropriate development authorisation under this Act and, if granted, to carry out a programme of work or to take other measures to ensure that the fire safety of the building is adequate; or

b) ...; or
c) ...
(10) On completion of any work required to be carried out by a notice under this section, the owner must notify the appropriate authority in writing.
Penalty: Division 7 fine.
(11) ...
(12) ...
(13) ...
(14) ...
(15) This section does not authorise any action inconsistent with the Heritage Places Act 1993 or a provision of the relevant Development Plan that relates to the Heritage.
(16) Any action taken under this section should seek to achieve, in the following order of priority –

1. firstly, a reasonable standard of fire safety for the occupiers of the relevant building;

b) secondly, the minimal spread of fire and smoke;

100. thirdly, an acceptable fire fighting environment, in accordance with the fire safety objectives and performance criteria of the Building Code of Australia.

(17) ...
(18) ...
(19) The following provisions apply with respect to the establishment of an appropriate authority:
(a) the appropriate authority will be constituted of –
і. a person who holds prescribed qualifications in building surveying appointed by the council or councils; and
іі a person nominated by the Chief Officer of the South Australian Metropolitan Fire Service or the Chief Officer of the South Australian Country Fire Service (determined by the council or councils after taking into account the nature of its area or their areas); and
ііі. a person with expertise in the area of fire safety appointed by the council or councils; and
іv. if so determined by the council or councils – a person selected by the council or councils;
(b)...
(c)...
(20) ... ”

6. The structure of s 71 appears to contemplate, that a body such as the Committee will, first, inspect the building for the purposes of determining whether its fire safety is adequate. Thereafter, if satisfied that fire safety is not adequate, the Committee may cause a Notice to be served on the owner of the building, requiring either, that the owner report to the Committee on work or other measures necessary to ensure that fire safety is adequate, or in the case of an emergency, require the owner (amongst other things) to carry out a program of work to overcome any such fire hazards (my underlining).
7. Where the authority acts under subsection 3(a), as it purported to do here, it can, after receiving the report referred to, issue a further Notice, requiring the owner of the building, to seek an appropriate development authorisation and carry out a program of work pursuant thereto, or to take other measures to ensure that the fire safety of the building is adequate.
8. An owner, who is served with a Notice to prepare a report or a Notice to carry out work, may appeal against the requirements of same. Any such Notice is intended to achieve, in the following order of priority, a reasonable standard of fire safety for the occupiers, minimal spread of fire and smoke, and an acceptable fire fighting environment in accordance with the fire safety objectives and performance criteria of the Code.
9. I have referred to a number of these provisions, in detail, because it will be seen later that the Committee appears to have proceeded otherwise than in accordance with the terms of the Section.

The Code

10. This is not the appropriate occasion for the Court to embark upon an exegesis of the Code. However, some reference, to parts of the Code, is necessary, in order to put into context, the relative positions of the parties.

Section A – General Provisions

11. The Code is a uniform set of technical provisions, for the design and construction of buildings throughout Australia, which seek to achieve nationally consistent, minimum, necessary standards of, inter alia, safety from fire.
12. In order for proposed building works to comply with the Code, such works must satisfy the Performance Requirements set out in the Code (Clause AO4). Compliance with the Performance Requirements can only be achieved by:
    • (a) complying with what are referred to in the Code as the Deemed to Satisfy (‘the DTS”) Provisions or
    • (b) formulating an Alternative Solution which

(i) complies with the Performance Requirements; or

(ii) is shown to be at least equivalent to the DTS Provisions; or

(iii) a combination of (a) and (b). (Clause AO5)

13. Building work which complies with the DTS Provisions is deemed to comply with the Performance Requirements. These Provisions are “black and white” solutions and if followed ensure compliance with the Performance Requirements.
14. On the other hand, an Alternative Solution will comply with the Code if, any one of a number of different Assessments Methods, used to determine compliance with the Performance Requirements, is satisfied. (Clause AO8).
15. These Assessment Methods include matters such as the use of documentary evidence which correctly describes the properties and performance of a form of construction (e.g, a report from a Registered Testing Authority) or a Certificate from a recognised expert in building matters (e.g, professional engineer). (Clause AO9 and Clause A2.2)).
16. Consequently, Alternative Solutions can potentially allow for innovative design and use of materials, provided they are accompanied by appropriate documentation.

Classification of Buildings

17. In this part of Section A, the Code classifies various buildings or parts of buildings, according to the purpose for which they are designed, constructed or adapted to be used (Clause A3.1).

Class 5 is an office building used for professional or commercial purposes.

Class 7(a) is a car park.

Class 9(b) a health-care building, includes an assembly building for activities such as a gymnasium (Clause A3.2).

Section B – Structural Stability

18. This Section deals with structural provisions and contains the requirements for the structural stability of a building, including the structural resistance that materials and forms of construction must achieve against effects such as dampness, termites, water etc.

Section C – Fire Resistance

19. This Section contains requirements for the fire resistance of a building. Its object is to ensure that not only fire-spread from one building to another is prevented, but also, that a building maintains structural stability during a fire, so as to allow for occupants to evacuate and fire fighters to arrive. This is achieved by:

(i) separation distances between buildings,

(ii) fire protection to external walls (including any openings such as windows) and;

(iii) the splitting up of external spaces of the building into separated fire compartments.

20. In this Section, the Code also specifies different types of fire-resistant construction, which the various classifications of building must achieve. Type A construction is the most fire-resistant and Type C the least fire-resistant (Clause 1.1(b).
21. An office building, a car-park or a gymnasium, of no more than one storey, are required to be Type C construction (Table C1.1).
22. The maximum size of a fire compartment, for a Class 5 building of Type C Construction is a floor area of 3000sqm. The maximum size of a fire- compartment for a Class 7a building or a Class 9b building, of Type C Construction, is 2000sqm (Table C2.2).
23. In a building, of Type B construction, the maximum sized fire-compartments are 5500sqm for Class 5 and 3500sqm for class 7a and 9b respectively (Table C2.2).
24. Furthermore, in single storey office, car-park or gymnasium buildings, which are required to be Type C construction, the various building elements in those buildings (for example, external walls, external columns) must achieve a Fire Resistance Level (FRL) measured in minutes, depending on how far the building element is from a “fire-source feature” (Specification C1.1 Table 5).
25. Relevantly for these purposes, a “fire-source feature” is defined to include the boundary of an allotment (Part A1 Interpretation).
26. The practical effect of these requirements means that, an external wall, less than 1.5 metres from the boundary, must achieve an FRL of 90 minutes for an office, car-park or gymnasium if it is of a Type C construction. In contrast, for corresponding buildings which are required to be of a Type B construction, the FRL of an external wall is 120 minutes.

Section D – Access and Egress

27. This Section of the Code deals with provisions relating to the number, size, type and separation of emergency exits, as well as the maximum permissible distance to an emergency exit. Every building is required to have at least one exit, (Clause D1.2(a)) and every occupant must have access to an exit, without the need to pass through another sole-occupancy unit (Clause D1.2(g)).
28. For Class 5, 7 and 9 buildings, no point on a floor must be more than 20m from an exit, or a point from which travel in different directions to 2 exits is available, in which case, the maximum distance to one of these exits must not exceed 40m (Clause D1.4(c).
29. The maximum number of persons able to be accommodated in a Class 5 building is limited to 1 per 10sqm; a class 9b gymnasium type building, 1 per 3sqm and a class 7a car-park, 1 per 30sqm (Table D1.13).

Section E – Services and Equipment

30. This Section of the Code deals with fire fighting equipment, including fire hydrants, hose reels, sprinklers, smoke detectors and alarms and emergency lighting and signs.
31. A fire hydrant system must be provided to serve buildings having a total floor area greater than 500sqm (Clause E1.3).
32. In a Class 5 building, of more than 3 storey’s, or a 9(b) building of more than 2 storeys, there must be provided an automatic smoke detection and alarm system (Table E2.2a).
33. Finally and importantly, in situations where a building has special characteristics or involves special uses additional smoke hazard measures may be required. (Clause E2.3).

Relevant Background Facts

34. The subject building was constructed many years ago, being originally used as a factory to manufacture partitions. In 1994, the then owner entered into possession and converted it to an office/warehouse use. The conversion was the subject of a development application. At that time it was classified as a Class 5 and 7 building.
35. As part of the assessment process, the Council required that a smoke venting system be installed in the building. In addition, an on-site hydrant was required. These requirements were insisted upon, in part, because it could not be shown, that the building was of a Type C construction.
36. As an alternative to these requirements, and presumably as part of an Alternative Solution, the architect, on behalf of the owner, proposed a smoke detection and alarm system. This solution was agreed to by both the Council and the Metropolitan Fire Service (“the MFS”), but on the clear understanding, that the system was to be monitored by the MFS. The requirement for the system was then included in a Schedule of Essential Safety Provisions pursuant to Regulation 76 (ExR5).
37. Since 1995, the building has been altered and/or added to on a number of occasions. Some of the alterations and additions have been the subject of development applications and approvals, but it also appears that some other additions/alterations have been carried out without approval.
38. In 2006 a development application was submitted to the Council, which proposed the consolidation of various fragmented approvals, previously given in relation to the use of the building. In addition the application also specifically sought approval to the conversion of temporary car-parking to permanent parking, the provision of 515m² of warehousing, accommodation of 12 specialist medical consultants and the provision of 70 car parking spaces.
39. Despite the application being for both a further new approval and a consolidation of the new and existing approvals, no such consolidated approval was given. Nevertheless, the building was thereafter occupied and used with still further fragmented approvals in place.
40. In April 2010, the Appellant made a further attempt to consolidate and regularise its position, by seeking a planning approval for a substantial portion of the site. Despite receiving a Development Plan Consent in July 2010, no Building Rules Consent has been sought or granted. Prior to making this last application, on 11 August 2009, the Appellants were served with the Fire Safety Defect Notice, the subject of this Appeal.
41. The Notice read as follows:

WHEREAS:
A. You are the owner of land situated at 699-707 Port Road Woodville Park SA 5011 being the Land comprised in Certificate of Title Register Book Volume Lot 6 FP 103459 Vol 5133 Fol 427, Lot 7 DP 1884 Vol 5171 Fol 750, Lot 8 DP DP 1884 Vol 5171 Fol 751, Lot 9 DP 1884 Vol 5171 Fol 751, and Lot 51 DP 60297 Vol 5897 Fol 412 (“the Land”).
B. Situated on the land is a medical centre, internal carpark, offices and a gymnasium (“the building”).
C. On 14 July 2009, the Committee conducted an inspection of the building and observed that the fire safety of the building is inadequate. A Schedule of the issues indicating that the fire safety of the building is inadequate is attached to this notice.
NOW TAKE NOTICE that pursuant to Section 71(3)(a) of the Development Act 1993, the Building Fire Safety Committee hereby gives you notice that you are required to:
Report to the Building Fire Safety Committee on the work or other measures necessary to ensure that the fire safety of the building is adequate.
FURTHER, you are required to comply with this Notice within two months of the date of this Notice pursuant to Section 71(4) of the Development Act 1993.
PURSUANT TO Section 71 (12) of the Development Act 1993, you have 14 days in which to lodge an appeal with the Environment, Resources and Development Court unless the Court allows a longer time.
PLEASE NOTE:
1. The Building Fire Safety Committee may, at the request of the owner, vary this notice or may, on its own initiative, revoke this notice if satisfied that it is appropriate to do so.
2. If you contravene or fail to comply with a requirement contained in this notice you will be guilty of an office and liable to a penalty of up $8,000, and a default penalty of $50.

SCHEDULE OF MEASURES REQUIRED TO ENSURE THE FIRE SAFETY
OF THE BUILDING IS ADEQUATE

1. The building must be covered by a system of exit and emergency lighting; existing emergency lighting is insufficient

2. Exit lights that do not lead to required exits must be removed, or re-located.
3. The building must be covered by additional hose reels and fire extinguishers.

4. Fire plugs on Port Road closest to the building must be tested for flow and pressure; test results must be submitted to the Committee for approval.
5. The building must have an automatic fire detection and alarm system in accordance with the building Code of Australia. The existing system has been disconnected.
6. Egress distances from the building exceed the maximum allowed for in the Building Code. Additional egress doors are required, and egress paths rearranged to ensure distances are acceptable.
7. Required external egress doors, and doors in required paths of exits must open out towards the direction of egress, and the doors fitted with the correct door handles.

8. Doors in egress paths that are locked must be unlocked.

9. The internal car parking area must be ventilated in accordance with the requirements of the Building Code.
10. A scaled site plan and plans of all buildings on site showing the above items must be submitted to the Committee for approval before a Development Application is lodged.”
42. Although the Notice purports to be given pursuant to Section 71(3)(a), which requires the owner to report on work necessary to ensure that fire safety is adequate, it then goes on, to set out a Schedule of Measures Required which, as I have said, appears to be contemplated either in an emergency under Section 71(3)(b) or following the issue of a further Notice pursuant to Section 71(6).
43. Subsequent to the lodgement of its appeal, the Appellants have been in negotiation with the Committee, with a view to carrying out the works, specified in the Schedule, except for item No 5, which the Appellants assert is unnecessary because the building can be made to comply with the requirements of the Code, without the need for the system.
44. It is common ground, that the existing alarm system has been disconnected. It remains uncertain as to when and for what reason the system was disconnected. One possible explanation is that that system was obsolete. I am now told that to install this new system it will cost in the order of $80,000.
45. The building is currently in use, (under Class 5, 7 and 9(b) classifications) for a variety of separate and distinct uses, including a call-centre, various medical specialists and a gymnasium. When the building is operating at maximum capacity it could accommodate up to 123 persons. As it is currently laid out, the building’s external walls are either on or quite close to portion of both the northern and eastern boundaries.
46. As at the time of hearing this Appeal, the Appellants acknowledged that the building does not satisfy the provisions in the Code for exit travel distances. Although an application has been submitted to Council, seeking approval for an additional “personal egress” door, this application has not been dealt with.

The Witnesses

47. On the appeal the Appellants called Mr Vandborg, a Building Surveyor with many years experience in building inspections generally, and matters of fire safety, in particular. He is also a member of a number of building fire safety committees.
48. The Respondent called two members of the Committee, Mr Mazzarolo, a Structural Engineer and Building Surveyor, and Mr Andrew Sharrad, a Community Safety Officer with the MFS and a fire fighter for over 20 years.
49. Mr Vandborg told the Court that, subject to the current application concerning a “personal egress” door being granted, if a Building Rules Consent and Development Approval are issued for the 2010 Development Plan Consent, the building will, as he put, meet the DTS requirements of the Code.
50. Mr Vandborg told the Court that, although he was not a party to the original agreement whereby an alarm system was installed in 1994, he made the assumption that it was put in as part of an Alternative Solution. The alarm would have provided the then occupants with earlier warning to compensate for the fact that they were required to travel further, (than the maximum distance of travel required by the Code), in order to get out of the building.
51. He told the Court that this issue could now be overcome by putting in this extra personal egress door which he identified on the floor plan (EXA2).
52. On the issue, of whether or not the building needed to be Type C or Type B construction, he concluded that it needed only to be a Type C construction. In the event, that he erred in this regard, he was of the view that the building might possibly satisfy even the rating for a Type B construction.
53. His conclusion, that it needed only to be Type C construction, was based upon his assessment that the floor area of the building was less than the maximum floor area allowed by the Code.
54. He also told the Court that he had made “assumptions to a degree” with respect to the construction type of this building, and that the eastern side is an area of the building that “we would have to look at” and if (as it appeared to be) it was of a lightweight timber framed material, “it may require some additional fire-rated material on it.”
55. He conceded in cross-examination that he had “no problem” with the Committee requiring an alarm system when it did in 1994, and that the system should not have been simply disconnected. He also frankly conceded that there is now, and has been for over 12 months, “a fundamental issue of fire safety” for some occupants of the building.
56. Mr Mazzarolo told the Court that the installation of another fire exit (the personal egress door), enabling the building to satisfy the travel-to-exit criteria in the Code, was only one requirement in the Committee’s Notice, and that it did not overcome the need for the alarm system in item 5 of the Notice.
57. He told the Court that the alarm system was required because the floor area of the building exceeds the Code in terms of the maximum floor area for Type C construction. In any event, he said that it is, and has always, only been assumed, that the building satisfied the requirements for a Type C construction. No-one, he said, had actually worked out the fire-resistance levels which, he said, must be done “in a fairly methodical ... and specific way according to the Code”.
58. He went on to conclude that, if the floor area of the building required that it be of Type B construction, the building on its far eastern side would probably have to be demolished and rebuilt.
59. It was for reasons, including these, that the Council, in its original approval, had insisted on (as part of an Alternative Solution) the alarm system which had now been disconnected.
60. Mr Sharrad, the MFS Officer, also gave evidence. He told the Court that the insertion of an extra exit point would not overcome his concerns. He described the configuration of the building, from a fire safety point of view, as being “one of your worst case scenarios.”
61. He said that the advantage of the system in this situation, is that it would enable fire fighters to be notified “within 30 seconds” and for them to respond immediately, rather than rely on potentially panicking members of the public.

Findings

62. I find that, in 1994, the then owner of the building made a development application to convert the building to use as an office and warehouse.
63. As part of the assessment process, the Council required a smoke venting system and a fire hydrant. In part, these requirements were sought because of an uncertainty with respect to the exact nature of the building’s construction in terms of its Type of Construction and FRL.
64. By way of an Alternative Solution, the owner’s representative proposed a smoke detection and alarm system. This Alternative Solution was accepted by both the Council and the MFS, and included in a Schedule of Essential Safety Provisions.
65. Since 1994, the building has been the subject of a number of alterations, many of which have resulted in applications for approval and subsequent development consents. However, at all times, the requirement for a smoke detection and alarm system has remained in place.
66. At some point, during the last 2 years, the system was disconnected, without reference to or approval by the Council.
67. In August 2009, the Committee issued a Notice (under Section 71 of the Act) to the Appellants, requiring them to report to the Committee, with respect to a schedule of items, which, in the Committee’s opinion, were necessary to ensure that the fire safety of the building was adequate.
68. Over the ensuing 12 months the Committee negotiated with the Appellants, and accepted, that all items except item 5 in its Notice, either had been, or were capable, of being addressed.
69. The building is currently being used without an automatic fire detection and alarm system. Although an extra fire-exit is proposed to overcome the building’s exit travel distance non-compliance with the Code, an application for same is yet to be approved.
70. The building is currently being used for a variety of uses, parts of which satisfy the requirements of the Code for buildings of Class 5, 7 and 9(b) respectively. The building accommodates some 9 separate tenancies and up to a maximum of 123 persons.

Conclusions

71. Section 71 of the Act enables the Committee to issue a Notice, requiring a building owner, to ensure that the fire safety of a building is adequate.
72. Other than in the case of an emergency, the Committee must first issue a Notice to a building owner, requiring it to report to the Committee. After receiving such a report, or in the event of a failure to comply with its Notice, the Committee may issue a further Notice, requiring the owner, inter alia, to undertake a program of works, designed to ensure adequate fire safety.
73. The terms of the actual Notice issued by the Committee to the Appellants, appear, to both require a report, and to detail a program of works to be carried out.
74. In so far as this represents a failure to comply with Section 71, I would be disposed to excuse such failure, pursuant to the provisions of Section 33 of the Environment, Resources and Development Court Act 1993.
75. In addition to the fact that powers, such as those contained in Section 33, are to be given “a wide, ample and benevolent construction”[1], the parties to the appeal, appear to have proceeded to negotiate a solution of this dispute, upon the mutual apprehension, that the provisions of Section 71 have been complied with.
76. In their final address, the Appellants strongly pressed a submission, that if a building was compliant, (from a fire safety point of view) with the Code, then the owner had satisfied the requirements of Section 71(3) to “ensure that fire safety was adequate”. (my underlining)
77. The Committee could not, it was submitted, require fire safety measures over and above the standards set out in the Code.
78. At first glance, there would seem to be some force in this submission.
79. In order to give meaningful expression, to the phrase “adequate safety,” regard needs to be had to the context in which it appears.
80. As Section 71(16) speaks of the need, for “any action” taken under this section, to achieve a reasonable standard of fire safety, in accordance with the fire safety objectives and performance criteria of the Code, it is arguable that achieving a reasonable standard of fire safety in accordance with the Code equates to ensuring adequate fire safety within the meaning of Section 71(3).
81. However, if the Committee is limited to insisting on measures which require compliance with the Code and no more, there would seem to be little work for Section 71 to do. For practical purposes, at least all the buildings constructed or added to since the Act came into force, would (in order to get building approval) have to satisfy the Building Rules and by extension, the Code. An owner, faced with a Section 71 Notice, could simply point to a Building Rules approval in answer to a requirement from the Committee.
82. Furthermore, I note that s 71(15) precludes any action being taken which is inconsistent with the Heritage Places Act 1993 (“the Act”). If the requirement for “adequate safety” within the meaning of Section 71 was satisfied merely by compliance with the Code, it would have been easy for Parliament to have expressed Section 71(16) in similar terms to Section 71(15) with respect to the Building Code.
83. Finally, the provisions of the Code themselves, (Clause E2.3) specifically recognise that there may be a need for additional smoke hazard measures due to the:-

(a) special characteristics of the building; or

(b) special function or use of the building

84. The evidence of both witnesses for the Respondent emphasised the fact that, this building was of particular concern, due to a combination of the aforementioned factors namely, the number of separate/independent tenancies (9), a potential maximum of over 120 occupants, the existence of cars in the undercover car-park, (which could have LPG tanks) immediately adjacent to some of the offices and the rabbit-warren configuration of the building.
85. These factors, the Respondent submitted, justified the requirements for an alarm system even if the provisions of the Code were otherwise satisfied.
86. Ultimately, however, it is unnecessary for me to decide whether the Appellants’ contentions are correct, because I am not satisfied that the building currently complies with the requirements of the Code.
87. The building, as it is presently being used, does not satisfy the requirements of the Code in relation to exit travel distances. Even though an application, (to add another personal egress door) has been made to the Council, the timing and nature of any such approval remains uncertain.
88. While this deficiency is probably able to be overcome reasonably easily, a more fundamental deficiency remains.
89. The issue of whether this building meets the criteria, for either a Type B or Type C building, remains uncertain. The alarm system was insisted upon by the Council in 1994, in part, due to its doubts as to whether the building satisfied Type B or Type C construction requirements. These doubts, as the evidence of both Mr Vandborg and Mazzarolo demonstrated, are as valid today, as they were in 1994.
90. In short, because the Committee cannot satisfy itself that the building has a satisfactory FRL, it needs an alarm system to quickly alert the MFS, thereby ensuring a prompt response and improved fire safety.
91. Therefore, in my view, the Committee was entitled to conclude that the fire safety of the building was not adequate, and to require the installation of a smoke detection and alarm system to ensure it became adequate.
92. Accordingly the Appeal is dismissed.

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[1] R V SAPC ex p City of Unley (1986) 44 SASR 100, 105